Citation Nr: 1036404
Decision Date: 09/27/10 Archive Date: 09/30/10
DOCKET NO. 09-00 910 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St. Paul,
Minnesota
THE ISSUES
1. Entitlement to service connection for a skin disability.
2. Entitlement to service connection for bilateral foot
disability, to include plantar fasciitis.
REPRESENTATION
Appellant represented by: The American Legion
WITNESSES AT HEARING ON APPEAL
Veteran and M.T.
ATTORNEY FOR THE BOARD
David S. Nelson, Counsel
INTRODUCTION
The Veteran had active service from March 1983 to July 1983 and
from June 2004 to November 2005.
These matters come before the Board of Veterans' Appeals (BVA or
Board) from a January 2008 rating decision of the Department of
Veterans Affairs (VA) Regional Office (RO) in St. Paul,
Minnesota.
In April 2010 the Veteran testified at a hearing before the
undersigned Veterans Law Judge at the RO. Evidence pertinent to
the matters on appeal was received contemporaneously with the
Veteran's April 2010 Board hearing. The Veteran has waived
initial RO consideration of this evidence. While this case was
held open for 30 days in order to allow the Veteran adequate
opportunity to submit additional information (April 2010 Board
hearing transcript, page 19), the Board notes that no such
information has been received.
FINDINGS OF FACT
1. A chronic skin disability was initially demonstrated years
after the Veteran's first period of service, and has not been
shown by competent clinical, or competent and credible lay,
evidence of record to be etiologically related to his first
period of service.
2. Clear and unmistakable evidence of record establishes that
psoriasis and eczema existed at the time of entrance of the
Veteran's second period of active service, and was not aggravated
by his second period of active service.
3. There has been no demonstration by competent clinical, or
credible lay, evidence of record that bilateral foot disability,
including plantar fasciitis, was present in either period of
service, or foot arthritis demonstrated to a compensable degree
within a year of discharge from either period of service, or that
there is a nexus or link between current foot disability and
either period of the Veteran's active service.
CONCLUSIONS OF LAW
1. A chronic skin disability was not incurred in or aggravated
by active service. 38 U.S.C.A. §§ 1101, 1110, 1111, 1112, 1113,
1131, 1137, 1153, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304,
3.306, 3.307, 3.309, 3.385 (2009).
2. Bilateral foot disability, including plantar fasciitis, was
not incurred in, or aggravated by, active service, nor may it be
presumed to have been so incurred or aggravated. 38 U.S.C.A. §§
1101, 1110, 1112, 1113, 5107 (West 2002); 38 C.F.R. §§ 3.303,
3.307, 3.309, 3.385 (2009).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
VCAA
The Veterans Claims Assistance Act of 2000 (VCAA), in part,
describes VA's duties to notify and assist claimants in
substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100,
5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102,
3.156(a), 3.159, 3.326(a). The VCAA applies in the instant case.
Duty to Notify
Upon receipt of a complete or substantially complete application
for benefits, VA is required to notify the claimant and his or
her representative, if any, of any information, and any medical
or lay evidence, that is necessary to substantiate the claim.
38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v.
Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must
inform the claimant of any information and evidence not of record
(1) that is necessary to substantiate the claim; (2) that VA will
seek to provide; and (3) that the claimant is expected to
provide. 38 C.F.R. § 3.159(b)(1). VCAA notice should be
provided to a claimant before the initial unfavorable agency of
original jurisdiction decision on a claim. Pelegrini v.
Principi, 18 Vet. App. 112 (2004).
By correspondence dated in November 2007 the Veteran was informed
of the evidence and information necessary to substantiate the
claims, the information required of the appellant to enable VA to
obtain evidence in support of the claims, the assistance that VA
would provide to obtain evidence and information in support of
the claims, and the evidence that should be submitted if there
was no desire for VA to obtain such evidence. In the November
2007 letter, the Veteran received notice regarding the assignment
of a disability rating and/or effective date in the event of an
award of VA benefits. Dingess/Hartman v. Nicholson, 19 Vet. App.
473 (2006). VCAA notice was completed prior to the initial AOJ
adjudication of the claims. Pelegrini.
Duty to Assist
Service treatment records are associated with the claims file, as
are VA and private medical records. The Veteran has undergone VA
examinations that addressed the medical matters presented by this
appeal. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet.
App. 79 (2006). When VA undertakes to provide a VA examination
or obtain a VA opinion, it must ensure that the examination or
opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312
(2007). The Board finds that the opinions of the December 2007
(skin) and December 2009 (feet) VA examiners are more than
adequate. The VA examiners elicited information concerning the
Veteran's military service. The opinions considered the
pertinent evidence of record, and included a specific reference
to the Veteran's service treatment records. Supporting rationale
was provided for the opinions. Nieves-Rodriguez v. Peake, 22 Vet
App 295 (2008). Accordingly, the Board finds that VA's duty to
assist with respect to obtaining a VA examination or opinion with
respect to the issues on appeal has been met. 38 C.F.R. §
3.159(c)(4).
The Veteran has not referenced any other pertinent, obtainable
evidence that remains outstanding. VA's duties to notify and
assist are met, and the Board will address the merits of the
claims.
Service connection is warranted if it is shown that a veteran has
a disability resulting from an injury incurred or a disease
contracted in active service, or for aggravation of a preexisting
injury or disease in active military service. 38 U.S.C.A. §§
1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted
for any disease diagnosed after discharge, when all the evidence,
including that pertinent to service, establishes that the disease
was incurred in service. 38 C.F.R. § 3.303(d).
Service connection for arthritis may be presumed, subject to
rebuttal, if manifest to a compensable degree within the year
after active service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38
C.F.R. § 3.307, 3.309.
If there is no evidence of a chronic condition during service, or
during an applicable presumptive period, then a showing of
continuity of symptomatology after service is required to support
the claim. See 38 C.F.R. § 3.303(b). See Savage v. Gober, 10
Vet. App. 488, 495-498 (1997).
In each case where a veteran is seeking service connection for
any disability, due consideration shall be given to the places,
types, and circumstances of such veteran's service as shown by
such veteran's service record, the official history of each
organization in which such veteran served, such veteran's medical
records, and all pertinent medical and lay evidence. 38 U.S.C.A.
§ 1154(a) (West 2002).
The Veteran asserts that he has the disabilities on appeal as a
result of his second period of active duty service.
I. Disability of the feet
The Veteran's service treatment records from his first period of
service are negative for any recorded evidence of treatment or
diagnosis of any foot disability. As for his second period of
service, an October 2005 Report of Medical Assessment reveals
that the Veteran complained of sore and "hurt" feet.
An October 2007 VA podiatry note reveals that the Veteran
complained of bilateral foot pain. The Veteran essentially
indicated that he had not had calluses of the heels prior to his
service in Iraq. Examination revealed pain in the midfoot
region, bilaterally. The assessment included feet pain and
osteoarthritis of the midfoot, bilaterally. A December 2007 VA
podiatry record noted that the pain in the midfoot region had
almost completely resolved. The assessment included plantar
fasciitis, bilateral.
Service comrade lay statements received in January 2008 asserted
that the Veteran had complained of foot pain prior to and during
his deployment to Iraq.
An October 2009 VA podiatry record notes that the Veteran had had
some left foot Achilles tendonitis "in the last couple of weeks
that has been fairly painful."
At a December 2009 VA feet examination, the Veteran essentially
indicated that he had not had foot problems prior to his
deployment to Iraq in 2004. The assessments included plantar
fasciitis, tiny bilateral calcaneal spurs, mild osteopenia, and
mild degenerative joint disease of the feet. The December 2009
VA examiner opined that the Veteran's bilateral foot condition
was not due to or caused by the Veteran's military service.
While the Veteran made a complaint of foot pain near the end of
his second period of active service (October 2005 Report of
Medical Assessment), the medical evidence fails to indicate that
the Veteran had any chronic foot disability during his second
period service. A December 2005 VA examination (conducted
shortly following the Veteran's discharge from his second period
of service) revealed no complaints or diagnosis related to any
disability of the feet. A June 2006 VA general medical
examination revealed that there were no left foot or right foot
symptoms, and the Veteran's feet were described as normal.
Significantly, the Board observes that no health professional, VA
or private, has related any disability of the feet to the
Veteran's active service. The Board here notes that the August
2008 letter from a VA podiatrist does not link the Veteran's feet
disability to his active service.
The Board has considered medical treatises submitted by the
Veteran in support of his contentions. The articles, however,
are too general in nature to provide, alone, the necessary
evidence to show that the Veteran suffers from disability of the
feet as a result of his active service. Sacks v. West, 11 Vet.
App. 314, 316- 17 (1998). The medical treatise must provide more
than speculative, generic statements not relevant to the
Veteran's claim but must discuss generic relationships with a
degree of certainty for the facts of a specific case. Wallin v.
West, 11 Vet. App. 509, 514 (1998).
The Veteran is competent (as are the service comrades) to provide
testimony and statements concerning factual matters of which he
has first hand knowledge (i.e., experiencing foot pain problems
during or after service). Barr v. Nicholson, 21 Vet. App. 303
(2007); Washington v. Nicholson, 19 Vet. App. 362 (2005).
Further, under certain circumstances, lay statements may serve to
support a claim for service connection by supporting the
occurrence of lay-observable events or the presence of
disability, or symptoms of disability, susceptible of lay
observation. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir.
2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).
However, the Board again notes that foot disability was not shown
until nearly two years following service, and no such disability
was noted or complained of at December 2005 and May 2006 VA
examinations, thus rendering the Veteran's assertions concerning
continuity of symptomatology as less than credible.
Based on the foregoing, the Board finds that the preponderance of
the evidence of record is against service connection for
disability of the feet.
II. Skin disability
VA law provides that a veteran is presumed to be in sound
condition, except for defects, infirmities or disorders noted
when examined, accepted, and enrolled for service, or where clear
and unmistakable evidence establishes that an injury or disease
existed prior to service and was not aggravated by service. 38
U.S.C.A. § 1111.
The presumption of soundness attaches only where there has been
an induction examination during which the disability about which
the veteran later complains was not detected. The regulations
provide expressly that the term "noted" denotes "[o]nly such
conditions as are recorded in examination reports," and that
"[h]istory of preservice existence of conditions recorded at the
time of examination does not constitute a notation of such
conditions." 38 C.F.R. § 3.304(b).
The law further provides that, if a preexisting disorder is noted
upon entry into service, the veteran cannot bring a claim for
service incurrence for that disorder, but the veteran may bring a
claim for service-connected aggravation of that disorder. In
that case, the provisions of 38 U.S.C.A § 1153 and 38 C.F.R. §
3.306 apply, and the burden falls on the veteran to establish
aggravation. Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir.
1994). If a presumption of aggravation under section 1153
arises, due to an increase in a disability in service, the burden
shifts to the government to show a lack of aggravation by
establishing "that the increase in disability is due to the
natural progress of the disease." 38 U.S.C. § 1153; 38 C.F.R. §
3.306; Jensen, 19 F.3d at 1417; Wagner v. Principi, 370 F. 3d
1089, 1096 (Fed. Cir. 2004).
A skin disability was not noted at the time of examination for
entrance into the Veteran's first period of service. Further, a
review of the service treatment records reveals that no skin
disability was demonstrated during the first period of service,
and there is no competent medical opinion linking skin disability
to the Veteran's first period of service. The Board observes
that the Veteran has not claimed that he had any skin disability
during his first period of service. In sum, the preponderance of
the evidence is against service connection for a skin disability
related to the Veteran's first period of service.
A skin disability was not noted at the time of the Veteran's
second period of active service. As such, the presumption of
soundness as to a skin disability attaches.
While a skin disability was not noted at the time of examination
for entrance into the Veteran's second period of active service,
a finding of "active psoriasis" was noted on June 8, 2004,
merely three days following the Veteran's entrance to service.
Further, a January 1987 Army reserves examination noted eczema of
the elbows, and a December 2005 VA examination noted that the
Veteran reported a 15 year history of psoriasis of the elbows and
knees. As such, the record clearly and unmistakably establishes
that the Veteran had psoriasis and eczema prior to June 1, 2004,
the beginning of his second period of active service.
Additionally, clear and unmistakable evidence establishes that
the pre-existing psoriasis and eczema did not undergo any
increase in service. Other than the June 4, 2004 record, service
treatment records reveal no indication that the Veteran
complained of or was treated for any skin problems during
service. In view of the foregoing, the Board finds that
competent evidence of record clearly and unmistakably shows that
the Veteran had a pre-existing skin disability prior to service
that was not aggravated by service. 38 U.S.C.A. § 1111.
The Veteran's service medical records do not reveal that pre-
existing skin disability increased in severity during service.
As noted, skin disability, other than shortly after entering
service, was not complained of during service. While a service
separation examination for the second period of service was not
undertaken, the Board notes that a December 2005 VA evaluation,
conducted shortly following service, although noting that the
Veteran had some psoriatic patches with some crusting and
scaliness on his elbows and knees, indicated that the condition
"appeared stable." In short, there is no evidence suggesting
that the Veteran's skin disability was aggravated by active
service. Accordingly, service connection for skin disability is
not warranted. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306.
The Board notes that the Veteran is competent to provide
testimony and statements concerning experiencing or observing
skin conditions. The Veteran's assertions as to a relationship
to service, however, are not credible in light of the objective
medical evidence, such as the lack of complaints of skin problems
in service, including the October 2005 Report of Medical
Assessment that revealed no complaints related to a skin
disability.
To the extent that the Veteran may be claiming that the
disabilities on appeal are the result of combat, the Board notes
that the provisions of 38 U.S.C.A. § 1154(b) do not obviate the
requirement that a veteran must submit medical evidence of a
causal relationship between his disability on appeal and service.
Libertine v. Brown, 9 Vet. App. 521, 524 (1996). That is, even
assuming combat status, the Veteran must provide satisfactory
evidence of a relationship between his service and the disorders
on appeal. He has not done so in this case.
ORDER
Service connection for bilateral foot disability, to include
plantar fasciitis, is denied.
Service connection for a skin disability is denied.
____________________________________________
U.R. POWELL
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs